This blog focuses on news and information regarding practice in the federal courts in the Eastern District of California, with a special emphasis on criminal and civil rights cases.

Blog Author

John Balazs is an attorney in Sacramento, California, specializing in criminal defense, including appeals, habeas corpus, pardons, expungements, and civil forfeiture actions. After graduating from UCLA Law School in 1989, he clerked for Judge Harry Pregerson of the U.S. Court of Appeals for the Ninth Circuit. John was an Assistant Federal Defender in Fresno and Sacramento from 1992-2001. He currently serves as an adjunct professor in clinical trial advocacy at the University of the Pacific McGeorge School of Law. Please email EDCA items of interest to Balazslaw@gmail.com. Follow me on twitter @balazslaw.

Disclaimer

This blog is for informational purposes only. Nothing in this blog should be construed as legal advice. The law can change rapidly and information in this blog can become outdated. Do your own research or consult with an attorney.

Medical Marijuana

January 23, 2015

The district court moved the final arguments on the Schweder Schedule I marijuana motion to dismiss from February 4 to a special session on February 11, at 2:30 p.m., before Judge Mueller. The court has scheduled one hour for arguments.

The court also granted the defense's motion to file an oversized reply brief.

January 21, 2015

Today, the government filed its Gov't Post-Hearing Reply Brief and the defense filed this Defense Post-Hearing Reply Brief with a request to filed an oversized brief. In this Doc 379- Order, the district court granted in part, denied in part, the defense's application to file a supplemental declaration of Jennie Stormes. Final arguments are still scheduled for February 4, 2015, at 9:00 a.m. before Judge Mueller.

January 01, 2015

Yesterday, the parties filed their Schweder case post-evidentiary hearing briefs, available here: Gov't Brief, Amended Defense Brief [1/7/15: I replaced original brief here with amended brief filed 1/5/15, which includes inadvertently omitted tables], and Defense Motion to File Oversized Brief [1/7/15: court granted motion for oversized brief on 1/5/15]. To recap, the evidentiary hearing concerned whether the government's continued inclusion of marijuana as a Schedule I controlled substance, i.e., one with no accepted medical use and a high potential for abuse, violates the guarantee of equal protection of our laws inherent in the Fifth Amendment's Due Process Clause. Although not the subject of the evidentiary hearing, the defense also argues that the federal government's prosecution of medical marijuana violates the constitutional principle of Equal Sovereignty. The Court's final ruling on the defense's motion to dismiss is not expected until after the February 4 arguments. [A few weeks ago, the defense also filed this Supplemental Declaration of Jennie Stormes. The district court has yet to rule on the government's objection to it.]

In short, the defense brief argues that the evidence failed to support the continued inclusion of marijuana in Schedule I under either strict scrutiny or active rational basis review and the government's state-based enforcement of federal drug laws in marijuana cases violates Equal Sovereignty. Defense attorneys Zenia Gilg and Heather Burke do a good job of incorporating recent federal government actions into their constitutional arguments, most notably Section 538 of the Consolidated and Further Continuing Appropriations Act, 2015, which President Obama signed into law on December 16, 2014. This new law bars the use of U.S. Department of Justice funds to prevent a number of listed states "from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana." This law not only supports the defense's Equal Sovereignty argument, but as the defense argues, "how is it Congress can justify a finding that marijuana has no medical benefit while demanding that the distribution of medical marijuana be protected from federal government interference. This is not only irrational, it is absurd." Defense Brief, at 36.

The government counters that there is a rational basis for marijuana's continued exclusion in Schedule I, so that the defense's equal protection argument fails. It also argues that (1) the defendants lack standing to challenge marijuana's Schedule I listing; (2) the D.C. Circuit has exclusive jurisdiction over classification challenges; and (3) the government's conduct does not violate Equal Sovereignty principles. The government predictably ignores the Section 538 amendment that prohibits funding of federal government attempts to interfere with state medical marijuana laws.

For those who have been asking me, it's too early to tell how Section 538 will impact current, past, and future federal medical marijuana cases. But this Schweder briefing is an early example of how defense attorneys can use it to challenge federal medical marijuana prosecutions.

December 16, 2014

Last week, the district court issued this minute order that postpones the briefing and hearing regarding the Schedule I marijuana evidentiary hearing in the Schweder, et. al., case for about two weeks:

MINUTE ORDER (Text Only) issued by Relief Courtroom Deputy J. Streeter for District Judge Kimberly J. Mueller on 12/11/2014: Pursuant to the parties stipulation [370] and good cause appearing, the Initial Post-Hearing Briefs filing date, regarding defendant Brian Justin Pickard, is extended to 12/31/2014; Simultaneous Responsive Briefs filing date is extended to 1/21/2015 and the Motion Hearing is CONTINUED to 2/4/2015 at 09:00 AM in Courtroom 3 (KJM) before Judge Kimberly J. Mueller.

November 21, 2014

Today's Sacramento Bee has a story on an EDCA indictment charging a Butte couple with marijuana cultivation and trafficking after law enforcement learned they had been selling marijuana on the Silk Road 2.0 website.

October 30, 2014

The testimony in the evidentiary hearing over the constitutionality of classifying marijuana as a schedule I controlled substance closed today at noon after government witness Dr. Madras finished her testimony. U.S. v. Schweder, et. al., No. 2:11-CR-0449-KJM.

Judge Mueller ordered the parties to submit a list of exhibits the parties agree may be admitted and/or any objections to exhibits by November 7. She also ordered the parties to submit a proposed schedule for final briefing and oral argument by that same date. A status conference was set as a control date for November 19, at 9:00 a.m.

October 29, 2014

The marijuana schedule I evidentiary hearing in the EDCA Schweder case starts up again today at 1:15 p.m. in Judge Mueller's courtroom with the finish of defense witness Christopher Conrad's testimony. Then government witness Madras will start her testimony. She is not expected to finish until Thursday.

October 28, 2014

According to TheLeafOnline.com (see also SFGate's Smell the Truth Blog), federal prosecutors stumbled badly during the cross-examination of Dr. Carl Hart on the medical benefits of marijuana during yesterday's evidentiary hearing before Judge Mueller:

Assistant US Attorney Gregory Broderick stumbled badly in his cross-examination of Dr. Carl Hart in federal evidentiary hearings to determine the constitutional basis of the federal Schedule I classification of cannabis, appearing at times to even tacitly endorse the idea that cannabis has medical value. In hearings conducted on October 27th by the Hon. Kimberly Mueller in the federal Eastern District of California in the matter of US v Schweder, attempts by US Attorneys to paint Hart – who teaches neuroscience at Columbia University and sits on an advisory board to the National Institute of Drug Abuse (NIDA) – as a researcher blinded by his personal biases blew up, at times embarrassingly, in their faces.

In one dramatic example, Broderick asked Hart about the Diagnostic and Statistical Manual (DSM), which is published by the American Psychiatric Association and contains a definition of “substance use disorder” (AKA addiction) which has been regarded as definitive by courts. Noting that the substance abuse standard promulgated by the 4th edition of the DSM (the DSM-IV) results in an oft-quoted 9% rate of dependence among lifetime users of cannabis, Broderick requested Hart’s comment.

But Hart appeared to stun Broderick with his response that the newest version of the DSM, the DSM-V, explains that tolerance and withdrawal from cannabis are “normal symptoms to be expected of legitimate medical cannabis use” in states where it is legal. (This point was later expanded upon by the testimony of Dr. Philip Denny, another expert witness for the defense.)

October 27, 2014

While other commitments have prevented me from observing, I've heard that defense witnesses Gregory Carter (Friday) and Carl Hart (today) have finished testifying in the Schweder case Schedule I marijuana evidentiary hearing. Starting tomorrow at 9:00 a.m., defense witness Dr. Philip Denny will complete his testimony, followed by Christopher Conrad. On Wednesday afternoon, the government is expected to call its expert, Bertha Madras. It's now looking like the evidentiary hearing will spill into Thursday.

October 23, 2014

At the request of the parties due to a scheduling conflict, the start of the evidentiary hearing on the constitutionality of classifying marijuana as a schedule I controlled substance in U.S. v. Schweder, et. al., No. 2:11-CR-0449-KJM, has been advanced to Friday, at 1:30 p.m. for the limited purpose of hearing the testimony of defense witness, Gregory T. Carter, M.D. He will be testifying via video. The evidentiary hearing is expected to continue on Monday, October 27, 9:00 a.m.-4:30 p.m., October 28, 9:00 a.m. - 4:30 p.m., and, if necessary, October 29, 1:30-4:30 p.m. It's in Judge Mueller's courtroom on the 15th Floor of the Sacramento federal courthouse.